Delhall v State of Florida

Case No. SC09-87 (FL S.Ct., Jul. 12, 2012)

Wadada Delhall appeals from a judgment of conviction of first-degree murder and a sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth below, we affirm Delhall‟s conviction for first-degree murder, but we vacate Delhall‟s death sentence and remand for a new penalty phase proceeding.

FACTUAL AND PROCEDURAL HISTORY

Overview

Wadada Delhall, age twenty-four at the time of the murder, was indicted on January 8, 2002, for the November 29, 2001, first-degree premeditated murder of Hubert McCrae in his auto repair shop in Opa-locka, Florida. He was also charged with unlawful use of a firearm in violation of section 782.04, Florida Statutes (2001), unlawful discharge of the firearm resulting in death or serious bodily harm upon McCrae in violation of section 790.07(2), Florida Statutes (2001), and possession of a firearm by a convicted felon. At the jury trial held in June 2008, the State presented evidence that Delhall murdered McCrae because he was, at that time, the only known eyewitness to the murder of another individual named Gilbert Bennett with which Delhall‟s brother Negus Delhall was charged. The jury found Wadada Delhall guilty of all the charges and the case proceeded to the penalty phase trial.

At the conclusion of the penalty phase, the jury recommended a death sentence by a vote of eight to four, and the trial court ultimately entered an order sentencing Delhall to death. This appeal ensued. Delhall raises ten issues on appeal concerning admission of evidence in the guilt phase and improper prosecutorial argument in the penalty phase, as well as a claim of error in a jury instruction in the penalty phase. We turn first to the facts of the case based on the evidence presented in the guilt phase of the trial.

fingerprinted, delhall began throwing punches and ripped his shirt. they were gerson to represent negus at the arthur hearing. delhall said he did not attend the pines and then left. she testified that she next saw wadada later that evening when delhall then admitted he had not been entirely truthful and that he did know who found in her car. detective charles also processed the vehicle for fingerprints, and your brother killed him? that we cannot conclude they did not influence the jury to reach a more severe witnessing the murder of a man named gilbert bennett at the same auto shop in that word. don‟t do that, okay. please.” despite defense counsel‟s further arrest delhall at the apartment, and they told him several times, both in the sentencing delhall to death based on four aggravating circumstances: (1) the prior to trial, delhall filed a motion to suppress his statements to police on mccrae. did he read the affidavit? did he see the affidavit? doesn‟t matter brother. an arrest warrant was subsequently issued for negus delhall in the present, but in the oral interview with butchko, delhall described further details of shooting. the apartment door was answered by delhall‟s cousin, tiese caldwell, we conclude that the trial court did not err in denying delhall‟s motion to suppress - 43 - other room, thus posing an immediate risk to officers and occupants of the at gunpoint, in handcuffs, in the presence of police officers scattered about his 2009), we approved admission of evidence that the defendant had a history of drug even if, based on the totality of the circumstances, it can be said that the objection is necessary.” williams v. state, 967 so. 2d 735, 747 n.11 (fla. 2007) findings of fact as long as they are supported by competent, substantial evidence, for a minor offense from august 27 to september 7, 2001, when he was released at they were not repeated in the prosecutor‟s subsequent cross-examination of in the instant case, the officers were in delhall‟s apartment lawfully with the car, a black chevrolet, back to their apartment at 10640 washington street, the court finally ruled that this is “a richardson violation so it‟s inadmissible at analysis.8 at the pretrial hearing, we conclude that a crawford violation did not occur in this finally, the prosecutor‟s improper comments during the closing argument of the fifth amendment standard of voluntariness but that it be determine if the primary purpose of the police questioning and victim statements that the shooter is not present does not necessarily signify an end to a possible noting that byrant was the first post-crawford confrontation clause case to finally, dr. emma lew, chief medical examiner for miami-dade county, even though the prosecutor was surprised at the submission of the booking maria berry‟s mazda automobile; (8) error in penalty phase jury instruction on competent, substantial evidence established that he voluntarily accompanied the crime scene and investigation, as well as photos showing bennett‟s lifeless body have occurred. mcduffie, 970 so. 2d at 322. willing and anxious to provide. the trial court did not make an adequate inquiry the prosecution „devolves from development of facts pertinent to the deputy christopher schaub, who testified about wadada‟s 1999 arrest for fleeing steverson‟s capital murder trial). through the mesentery of the small bowel and upward through his liver and into his whether the statements were inadmissible hearsay or whether they met some all those things i told you. the whole thing is a lie. my fundamental than the right of an accused to present evidence or witnesses in his was the one who fired the shots. around 2 a.m., butchko told delhall they wanted id. at 602 (quoting wong sun, 371 u.s. at 486). “no single fact is dispositive.” mccarter v. state, 463 so. 2d 546, 548-49 (fla. 5th dca 1985))). the facts and obligation to review the sufficiency of the evidence of first-degree murder in every eluding, resisting with violence, driving while license suspended, leaving the scene unfairly prejudiced him or misled or confused the jury. be error in urbin v. state, 714 so. 2d 411, 422 n.14 (fla. 1998). thus, the trial it was not offered to prove the truth of brown‟s statement about witnessing the reasonable doubt.” simmons v. state, 934 so. 2d 1100, 1111 (fla. 2006) (quoting (quoting davis, 547 u.s. at 822). that inquiry in bryant resulted in the conclusion of an illegal arrest. in an apparent attempt to dispel the idea that he learned about mccrae from murder was cold, calculated, and premeditated (ccp) (great weight); (2) delhall which time they took a break. after butchko returned to the interview room at affidavit was presented, “it was at this point that the defendant decided to take defendant puts it in issue. nor can the prosecution accomplish the vs. delhall also objected to the extent of the evidence submitted to prove officer‟s knowledge and of which he had reasonably trustworthy information are [bennett] his best friend unless richie told you where conroy was to shooter got into the passenger side of the car. instead, delhall told butchko he was 1998)); see also bertolotti v. state, 476 so. 2d 130, 133 (fla. 1985) (“we are proving a motive for killing mccrae. delhall admitted that he learned about had been located as of that date. the evidence also established that wadada whether the trial court conducted an adequate richardson inquiry; whether the - 59 - concerning the bennett murder was to prove wadada delhall‟s motive for at 604. additionally, the impropriety of the arrest was noted and the actions of the discretion. see valle v. state, 70 so. 3d 530, 546 (fla. 2011). the trial judge‟s 2d 1054, 1068 (fla. 2007) (quoting urbin v. state, 714 so. 2d 411, 422 (fla. presented victim impact evidence by irma mccrae, hubert mccrae‟s widow; shooting and that no firearms were ever recovered. where the issue involves possible exclusion of defense exists to overcome the prejudice and allow the witness to testify. see, e.g., cooper levine is indicating my client was involved in another homicide. accuracy of the evidence sought to be introduced. these options were rejected. testimony, was presented to the jury. the state introduced delhall‟s confession in the instant case, delhall went voluntarily to the police station without a. i don‟t know nothing about what you talking about. other witnesses‟ testimony that there were two people in the car and that the important factor in distinguishing that interrogation from formal in-house not shown to be related to crimes charged and was unduly prejudicial. “in florida, the defendant, his attorney, and the state may present additional evidence and when delhall was discovered in the closet, officers reasonably concluded - 48 - q. across his back? the supreme court held in bryant that “[as] davis made clear, whether an where no such primary purpose [of creating an out-of-court substitute - 40 - that he was wanted by the police in miami dade county and there this court has held that arguments of future dangerousness as a basis to unreasonable . . . subject only to a few specifically established and well-delineated cumulatively require that a new penalty phase be held. we first examine the errors comments that are “a fair statement of the evidence produced during the trial and and impermissible evidence could have affected the trier-of-fact, we conclude the reviewing the report and autopsy files, it was her opinion that hubert mccrae died denigrating mitigation as “make believe” is improper); cf. cox v. state, 819 so. 2d gell v. hartmarx corp., 496 u.s. 384, 405 (1990)). thus, our first inquiry is court erred in overruling the objection. sufficiency of the evidence would not have asked the question about the existence of proof if she had been that he was incarcerated on september 6, 2001, and delhall replied that he did. on overview ongoing emergency exists is simply one factor—albeit an important factor—that 1014 (fla. 2008). in brooks v. state, 762 so. 2d 879 (fla. 2000), we specifically handwritten confession was admitted over delhall‟s pretrial and trial objections, second, the prosecutor argued numerous times, sometimes over objection younger siblings. he was like a brother and a father to them, and urged them to - 67 - “its ruling is based on an „erroneous view of the law or on a clearly erroneous admission of the mccrae affidavit did not violate the confrontation clause or the said that the improper comments contributed to the recommendation of death in redirect examination, defense counsel sought to admit, for identification, a booking after viewing the evidence in the light most favorable to the state, a rational trier of primarily to create an out-of-court substitute for testimony. the court in bryant harmless beyond a reasonable doubt. probation (great weight); and (4) the murder was committed to hinder or disrupt he did not see who was shooting, but he did see a person at the passenger side 371 u.s. 471, 486 (1963)] requires not merely that the statement meet prejudice to its trial preparation if the evidence is admitted. the trial court felony defendant to a bail hearing where the state must show that guilt is evident the gilbert bennett murder, including a photograph of bennett‟s dead body lying comments of the prosecutor. these comments, along with several other errors - 57 - arising from the december 1999 incident involving deputy schaub in the broward bennett murder. we agree that admission of the extensive evidence of the bennett the united states supreme court held in crawford that testimonial hearsay of five of the defendant‟s children about the defendant‟s bizarre sexual abuse of he wrote, delhall said it was “[t]he statement mr. clifford coerced me to write.” - 58 - had been killed at the same auto shop. gooden subsequently became a witness at confession was still voluntary and sufficiently an act of free will to purge any taint the mccrae affidavit. thus, if there was no legitimate issue concerning whether the defense, special importance attaches to the trial court‟s inquiry if he, along with his brother atiba and three other individuals, dealt drugs out of a 24th, 1998. confessed because he also feared being beaten up by the police, and related an however, in the instant case, delhall has not identified any pretrial motion or detention, the question is not a fifth amendment issue concerning whether about 1:30 a.m. on december 6, 2001, delhall said he would tell the officers the sanction of exclusion of a witness or other evidence is appropriate” and the inquiry to be willful nondisclosure. second, in light of the nature of the document sought a book bag with papers bearing delhall‟s name, marcia berry‟s passport, and a live davis, that the reach of the confrontation clause is limited to testimonial - 62 - particular factual contexts—not readily, or even usefully, reduced to a instance, the judge was forced to step in and specifically admonish her to stop it. for appellee evidence” should be used only as a last resort and it is incumbent upon the trial gunshot victim found by police were not testimonial and therefore were not barred studio. he said he never left the studio until he picked up berry and took her to a continuing objection to anything about my client having any mr. lenamon [defense counsel]: objection, sidebar. delhall‟s girlfriend in 2001, marcia berry, testified that she left work around butchko that just before he got back into the car, he fired another shot to scare any body lying in a pool of blood was not necessary to prove motive on delhall‟s part. evidence to indicate that delhall‟s statements to police were anything but to question them. butchko and his team, sergeant yolanda rayborn and victim was hubert mccrae. mccrae had previously given police a statement about fast food restaurant in pembroke pines late that evening. he added that he gave a suggests criminality on delhall‟s part, and specifically accuses him of the murder same forbidden end by indirection through pursuing a method of that the violation was willful or that the state was substantially prejudiced, but warrantless entry into the bedroom and the protective search of the closet. murder of gilbert bennett at that auto repair shop in 1998, but did not come mccrae‟s name was mentioned as the only eyewitness. - 17 - discovery violation by the state. the same rules apply, however, regardless of because of his being suspected or accused of other offenses, or delhall‟s motive for killing hubert mccrae was to eliminate the only eyewitness closet in the bedroom. because evidence established that the police did not know we turn first to the facts of the case based on the statements were testimonial and thus inadmissible under crawford v. washington, the future. this argument of dangerousness was improper. see, e.g., brooks, 762 scope of evidence necessary to simply prove that negus delhall was charged with hearing at which them in to talk with her. at one point detective bayas became alarmed and asked both guns. butchko did not formally learn that two guns were used in the shooting the united states supreme court held in bryant, as it did in crawford and error is harmless beyond a reasonable doubt as to delhall‟s guilt. closet violated the fourth amendment and was not an authorized protective sweep the defendant‟s right to confront witnesses; it is not sufficient to object to the defendant.‟ ” peterson v. state, 2 so. 3d 146, 155 (fla. 2009) a. no. in his testimony. schaub testified that when delhall was on the way to be case, mccrae had been shot shortly before police arrived, his statements related to it is well settled that the prosecution in a criminal case cannot not preserved by delhall‟s hearsay objection made during trial. even assuming the when negus broke down and cried, delhall was “shaken up about that.” the the defendant of a fair and impartial trial, materially contribute to the conviction, wesson semiautomatic. the second group was, in his opinion, fired from a involvement in any other homicide. the accused should be found guilty of the particular crime charged, to a gas station where he was found. id. when the officer asked the victim “what veracity of the allegations in the affidavit. this provided evidence of delhall‟s comprehensively defined testimonial statements in crawford and that in davis it counsel had refreshed his recollection of the date he was released by showing him knew from the witness statements that there was a second person in the car. at detective bayas, who was in broward county to meet with marcia berry. - 8 - 4:30 p.m., and delhall continued to deny involvement in mccrae‟s murder, temporal proximity of the arrest and confession, the presence of intervening crime evidence was unfairly prejudicial and became a feature of mccrae was the sole witness against negus after the arthur hearing and began was yelling at someone to get down on the floor. bayas said he found a man court . . . to determine whether any other reasonable alternatives can questioning defendant and his witness on cross-examination that is penalty phase and sentencing order with earnestness and vigor, they should not be at liberty to strike „foul blows.‟ ” overwhelming evidence test” but the “focus is on the effect of the error on the trier- girlfriend and in which delhall rode with his brother atiba on the day of the delhall agreed to go to the police station to answer some questions and was fair proceeding.” wade v. state, 41 so. 3d 857, 872 (fla. 2010) (quoting floyd v. substantial body of evidence concerning the bennett murder that exceeded the more importantly, the prosecutor strongly implied during cross-examination of happened” served the primary purpose of assisting police to respond to an ongoing „transcend[s] the bounds of relevancy to the charge being tried‟ and had with him a 9mm semiautomatic handgun and a .38 caliber silver-colored penalty phase proceeding. “[r]ights under the two amendments may appear to coalesce since „the principally designed, by means of innuendo and suggestions of - 5 - evidence concerning the bennett murder upon mccrae in violation of section 790.07(2), florida statutes (2001), and pretrial ruling that prohibited argument about future dangerousness. delhall‟s thus, bryant focuses to a large degree on whether the statement was elicited richardson inquiry. even so, the court did not make specific findings concerning bennett‟s murder, and gooden assured them he was not going to tell the police at the conclusion of the penalty phase, the jury recommended a death delhall next contends that the trial court erred in allowing admission of a into the warehouse area and drove past the victim again. butchko said delhall hearing where negus was present with his attorney paul gerson, and hubert the warehouse area and testified at wadada‟s trial that he actually witnessed the a last resort and only after the court determines no other reasonable alternative policy at the time, no audio or video of this interview was recorded. was offered in wadada‟s trial not to prove that mccrae actually did see negus during penalty phase closing arguments that delhall contends denied him a fair mccrae did not testify at the bond hearing, but his sworn william clifford testified that he asked delhall about november 29, 2001, the violation was not shown to be substantial. moreover, the state presented be found so that conroy turner could pay you back for the dope that enunciated in terry v. ohio, 392 u.s. 1 (1968), allows the police to temporarily if filed, determined. statement, the prosecutor argued that after the bond hearing at which mccrae‟s light most favorable to the state, we find that the evidence was sufficient to prove the event, the event was sufficiently startling, and there is no evidence of time for q. your brother killed him right in that auto shop right there effect of those errors is appropriate because „even though there was competent door of the car just before it left. as the car turned left to leave, rodriguez heard learned that mccrae was the only eyewitness to the gilbert bennett murder, for the state presented evidence of delhall‟s prior violent felony conviction hiding in a closet. when the man emerged from the closet, he told bayas he was - 44 - - 32 - capital trial, reversible error will result. see, e.g., steverson v. state, q. you know who richie b was? convicted felon. - 34 - by various manufacturers, was fired from a 9mm weapon, probably a smith and wadada delhall and that he was unarmed, his handcuffs were removed. sufficient to warrant a person of reasonable caution to believe that an offense has hearsay and thus is not barred by the confrontation clause. the mccrae affidavit q. he has tattoos all over his back, doesn‟t he? came out to a car, reached for the door handle, then turned around and shot one bennett‟s murder was attributed to negus delhall, wadada delhall‟s younger demand evidentiary proof of the jail stay when wadada was on the witness stand. has upheld the admission of dissimilar fact evidence of other crimes in order to (quoting brooks v. state, 918 so. 2d 181, 202 (fla. 2005)); see also mcduffie, 970 cross-examination, the prosecutor asked delhall if he had proof with him that day “it is well settled under the fourth and fourteenth amendments that a hand in that case, but may not be the only context in which statements will be prejudice to the opposing party. state v. randol, 947 so. 2d 609, 613 (fla. 3d for appellant delhall told clifford that he learned from gerson that mccrae was the only general criminality on accused‟s part, to lead the jury to believe that - 6 - evidence and reasonable inferences and deductions derived therefrom in a manner distinguished the circumstances in davis from those in crawford, where the and had given a sworn statement about what he witnessed. after negus‟s arrest, mccrae was, having gotten the name from negus‟s first lawyer, paul gerson. shopping mall and then to berry‟s father‟s house, he and berry took her father‟s inalienable right of all litigants.‟ ” hurst v. state, 18 so. 3d 975, 1015 (fla. 2009) error that occurred in admission of evidence highlighting the bennett murder. discretion is limited by the rules of evidence and the principles of stare decisis. delhall killed bennett, or innuendo that he was involved in its planning or was delhall next contends that the trial court erred in admitting evidence of the driver. “probable cause to arrest exists when facts and circumstances within an 2. the issues raised by delhall are: (1) error in denial of delhall‟s motion to shoot mccrae in god‟s hands were made up. he also denied telling butchko he disproportionate in relation to the evidence that was presented regarding delhall‟s interview at the police station was actually a custodial interrogation after a seizure presented in this case. the state presented evidence that on november 29, 2001, (fla. 2003)). where evidence does, in fact, become a feature of the established that delhall fired more than a dozen rounds of ammunition during the examiner to the jury. 3. i gave a sworn statement to detective ray hoadley in the where he sold both guns to someone on the street. the primary purpose determination, standard rules of hearsay, marcia berry did not confirm delhall‟s alibi and, when confronted with this hubert mccrae in his auto repair shop in opa-locka, florida. he was also charged pariente, lewis, quince, labarga, and perry, jj., concur. on december 5, 2001, butchko and his team went to the apartment where searching for him. the state contended that after delhall learned that gooden was until speaking with the firearms examiner on january 16, 2002. delhall also told not want to get involved. after negus‟s arrest, gooden said wadada delhall and a delhall’s booking sheet when, as in this case, the discovery violation is committed by 2d at 328 (alterations in original) (quoting brooks v. state, 918 so. 2d 181, 202 incorrectly accepted “surprise” as sufficient prejudice. the state contends that its apartment. these circumstances meet the exigent circumstances requirement for look here. you are not putting yourself involved in any crime. . . . i came out here - 65 - in rebuttal, the state presented testimony from broward county sheriff‟s 1. it was stipulated during trial that delhall is a convicted felon. was with atiba. rules of prison if incarcerated for life without parole. as to mitigating shooting and found hubert mccrae lying on the ground in front of a car repair bay. the individual may have committed or been present at the mccrae murder. at a sentence of death has been imposed.”). hubert mccrae had provided police with a description of bennett‟s shooter wadada delhall appeals from a judgment of conviction of first-degree - 37 - that day with his shirt off showing his tattoos, something you don‟t brown‟s out-of-court statements to police in which she said she witnessed the was not a comment designed to recognize the validity of the mitigation and simply the booking sheet, although defense counsel‟s motion for a short continuance to beyond a reasonable doubt. see diguilio, 491 so. 2d at 1138. the harmless error at 11:15 p.m. on december 5, 2001, detectives butchko and estopinan left and delhall again denied knowing mccrae or anything about his murder. when that is introduced against a defendant violates the confrontation clause unless the is deemed so prejudicial that it vitiates the entire trial, depriving the defendant of a skinned man, about 5‟11” tall, coming out of ray‟s auto service with his hand the evidence concerning the bennett murder was offered to prove wadada because the victim stole jackson‟s drugs and money. id. at 529. in jorgenson v. was sentenced to death, this prosecutor acted in such a way as to render the whole the defendant” were proper). in the instant case, calling the mitigation “excuses” we turn first to a discussion of the sufficiency of the evidence presented in murder as presented was not substantially outweighed by its unfairly prejudicial that once he was found in the apartment, he was unlawfully placed under arrest by marcia berry‟s car. delhall said atiba did not fire any shots at mccrae, which revolver and a 9mm semiautomatic—both of which he used to shoot mccrae. state, 162 so. 146, 147 (fla. 1935). further, we have stated: factual and procedural history the evidence as a sanction, thus erring, this court will conduct a harmless error arrested for fleeing officers in a car chase. delhall testified that clifford told him - 26 - under arrest at the police station, without probable cause, before he confessed. this case was without doubt testimonial. the defense presented the testimony of ten family members and one family mccrae was still alive but in obvious pain from gunshot wounds, including an v. state, 336 so. 2d 1133, 1138 (fla. 1976). as expressed in mcduffie, this rule county, drove the mazda that was parked at the apartment. killer out of a photo array, as the affidavit indicates. the affidavit was not offered inject into the cross-examination of the defendant appearing as a witness in his other, and that when he was about ten feet from mccrae, he started shooting with in bennett‟s murder was improper. this court has long held that it is improper “to want me to shoot the victim, then don‟t let the victim be there.” delhall saw conclusion unfair advocacy, appeared to be committed to winning a death recommendation justify a warrantless search within a home that is not required to accompany a for mistrial based on the prosecutor‟s cross-examination of delhall implicating him the 9mm cartridge found in the mazda nothing to compel a conclusion that failure of the defense to provide the booking prosecution. foy v. state, 155 so. 657, 658 (fla. 1934) (citation omitted). in the present case, standard of review of denial of the mistrial is abuse of discretion. poole v. state, consider the cumulative effect of numerous instances of both objected-to and he wanted to help himself he should write up a statement and “just tell them you deported and with his father absent, delhall took over caring for his younger him to provide a formal statement, after going through the unrecorded interview required the search that disclosed delhall hiding in a closet. we agree. there is the officers that aside from the several small children playing in the living room, a. wrong. “sufficiently an act of free will to purge the primary taint.” confession should have been suppressed. relationships to be factors in mitigation, but gave them little weight. the trial court his bedroom; (7) error in admitting evidence of an unspent 9mm cartridge found in the officer‟s belief at the time of entry is considered on review.” seibert, 923 so. case in which a death sentence has been imposed, even where the issue is not q. you couldn‟t find conroy turner so you killed richie b the court: listen, this is a richardson violation. there is - 35 - search of the bedroom closet was not an unreasonable search in violation of the 1. i operate an auto repair business located at 2143 opa locka without solution when i heard that my brother was facing the death the defense presented mitigation testimony of dr. brad fisher, a clinical jorgenson‟s motive for the murder. the victim had threatened to turn jorgenson in the willfulness of the violation or the substantial prejudice to the state. as possible witnesses. after leaving the scene, delhall said he drove to hialeah penalty recommendation than it would have otherwise. this is especially had a prior violent felony conviction for resisting arrest with violence in broward search the apartment, the warrantless search that disclosed delhall hiding in the brother, negus. the error in the guilt phase cross-examination, although harmless comments were not so prejudicial that they vitiated the entire penalty phase or living room. the officers had reason to believe that one of negus‟s brothers shot because of his connections or associations with other accused persons certainly before the defendant began his testimony i‟m having to delhall later refused to go through the details again with a court reporter another shot. driving to opa-locka in the mazda. according to butchko, delhall said that he apartment and parking lot. he cites the fact that police told him that they wanted delhall attended the bond hearing, it is difficult to see how the state was propriety and restraint”). the prosecutor in this case, by her overzealous and under the totality of the circumstances present in this case, the warrantless he was free to leave and was given miranda warnings. however, detective revolver, possibly a “.38 special or .350 manufactured by luger.” to question him about a murder and that, once at the police station, he was not told automobile. retired miami-dade police detective tommy charles testified that hiding because he was on probation and did not want to get into trouble. after brother, negus, took a contract to kill conroy turner. the prosecutor then asked: hertel‟s opinion, the first group of projectiles, comprising ammunition produced involved a richardson violation by the defense, we explained: when he heard shots from inside the office area of the shop and then observed a violate the confrontation clause contained in the sixth amendment to the united the supreme court has further explained that probable cause is a discounted because of the passage of time and the lack of an evidentiary nexus to a. after they start showing me pictures of the dude. appeal concerning admission of evidence in the guilt phase and improper 2. i was a witness to the shooting of gilbert bennett on april for the first-degree murder of hubert mccrae. however, i disagree with the turner “ripped you guys off for drugs” and asked delhall to confirm that his so. 2d at 905 (reversing for a new penalty phase for cumulative error where richie b because richie b wouldn‟t say where conroy turner could the supreme court in crawford stated that the confrontation clause “does the penalty phase were harmless, and the trial court did not abuse its discretion in to leave was dictated by the fact that he was taken from his bedroom by the police, - 7 - brother of the guy who shot the man who owned the business before.” officer imposed when there is no other adequate remedy.” mcduffie, 970 so. 2d at 321; „the primary purpose of the interrogation is to enable police assistance to meet an station until after he confessed. further, officers testified that delhall was told requires. the most that the prosecutor argued at trial and in this court is that she of the document, and further asked for a short continuance to obtain documentation prosecutor, if you had it at some point, other than right at this was not handcuffed during the interview. the intervening event which could justify its initiation.” siebert, 923 so. 2d at 468 (quoting mincey, 437 u.s. at dca 2004)). “in determining the sufficiency of the evidence, the question is whether, presumption of correctness and, as the reviewing court, we must interpret the harmless is discussed later in this issue. signing my name below it, noting the date and the time. not exist or has been met. id. (citing rolling, 695 so. 2d at 293). “it is immaterial - 4 - dangerousness. our conclusion that a new penalty phase is required is buttressed sanction, we must determine if the error was harmless. “this court has defined the fourth amendment. because the search produced no tangible evidence but bennett on april 24th, 1998. i indicated my choice by, among other “unreasonable searches and seizures” condemned in the fourth amendment are held down by his side. williams could not make out the man‟s face. the man by the fact that during the guilt phase, the state presented an excess of evidence— brother had been denied bond. . . . hubert mccrae‟s affidavit was now public in that category of proper comment. as recognized in brooks, the prosecutor officer hufnagel asked mccrae if he had any idea who shot him and, over defense actually cared that richie b was killed, you didn‟t figure on that did arrest. butchko also testified that if delhall had demanded to leave, they would must object on the grounds that admission of the out-of-court statement will violate his father was absent and, at age eighteen, delhall was the oldest son and became - 36 - apartment or when he was taken to the police station. affidavit describing how he witnessed the bennett murder and identified a harmless error analysis outer bounds of an ongoing emergency. see bryant, 131 s. ct. at 1158. the court admission of one unfired cartridge found in the mazda affected the verdict. see charged with an extra obligation to ensure that the trial is fundamentally fair in all be so harmful or fundamentally tainted as to require a new trial, or be so must involve a determination of whether the violation resulted in substantial fred williams was working at the j&b body shop in the warehouse area of assailant as the brother of the shooter in the bennett murder, miami-dade police son-in-law). furthermore, the evidence of the bennett murder was not committed in a cold, calculated, and premeditated manner. it cannot be reasonably substantial amount of evidence through a number of different witnesses concerning case. september 6, 2001.3 murder and a sentence of death. we have jurisdiction. see art. v, § 3(b)(1), fla. well as all of the evidence supporting the aggravators, including the aggravators ____________ restraints. delhall now contends his belief about whether he would have been free supreme court held that statements made in response to police questioning by a hertel testified that two different firearms were used in the mccrae murder. in this case. see brooks v. state, 918 so. 2d 181, 207 (fla. 2005). moreover, the classification of all conceivable statements as either testimonial or nontestimonial. seek justice, not merely „win‟ a death recommendation.” merck v. state, 975 so. q. richie b‟s best friend was conroy turner. conroy turner murdering gilbert bennett. the improper reference to delhall was fleeting, and it “flimsy,” “phantom,” and repeatedly characterizing such struggling on the floor when, deputy schaub testified, “i felt him grab a hold of indicating a possible ongoing emergency—mccrae‟s statements are more akin to over the banister after she asked that question. learned of the witness by attending negus‟s bond hearing. in the state‟s opening assessment of the evidence.‟ ” mcduffie, 970 so. 2d at 326 (quoting cooter & crime laboratory criminalist, jess galan, on the firearms used in mccrae‟s murder. from gerson. ask what happened, delhall told william clifford that he learned about mccrae - 42 - in a written waiver form prior to giving his statements. we first examine the never argued future dangerousness but only commented on the dangerousness of with unlawful use of a firearm in violation of section 782.04, florida statutes objection and request to make a motion, the trial court allowed the prosecutor to stare decisis. mcduffie v. state, 970 so. 2d 312, 326 (fla. 2007) (citing johnston murder of bennett, but it was not until 2001 that negus was finally arrested out of “where multiple errors are discovered in the jury trial, a review of the cumulative the trial court did not announce that it was engaging in a richardson record.” although paul gerson, the lawyer hired for negus by delhall, later photograph of the shooter was introduced at that hearing.4 the trial court‟s actions pursuant to the inquiry were proper. see mcduffie, 970 have, right. urge less weight. the comment appears designed to invalidate the mitigation and fear into the jury‟s deliberations, a prosecutor has ventured far outside the ongoing emergency.‟ ” id. at 1156 (quoting davis, 547 u.s. at 822). moreover, delhall went with the police to the police station and spoke with them confessing to the murder, and that when clifford read the statement, he said, “man, state v. diguilio, 491 so. 2d 1129, 1138 (fla. 1986). should be used only as a last resort” and “it is incumbent upon the trial conviction for first-degree murder. however, this court has a mandatory so. 2d 792, 809 (fla. 2002), the prosecutor‟s denigration in this case does not fall improperly called delhall‟s mitigation “excuses.” 762 so. 2d at 904. a similar mr. lenamon: i believe she did. exclusion of the evidence is viewed as an extreme sanction to be employed only as mccrae’s statement to officer hufnagel who explained that wadada delhall lived there but was not home. caldwell told 705, 718 (fla. 2002) (holding that comments “designed to convey the concept that as to the guilt phase, we conclude that although the comments suggesting the murders. the evidence showed that victorino and his codefendants acted as a fact, delhall confessed to clifford that he killed mccrae to keep him from probation payment receipt issued to wadada delhall, a job application by delhall, established that delhall went with the officers willingly, without handcuffs or other evidence that the defendant was a drug dealer because a material issue was always been violent and cannot be fixed, and that his mitigation is nothing but examination was harmless, and the trial court did not abuse its discretion in cross-examine that witness. 541 u.s. at 68. the court left “for another day any even if at some point in the consensual interview delhall was “arrested,” his declarant is unavailable and the defendant had a prior meaningful opportunity to because the search conducted in his apartment was not an unreasonable search. guilt phase, testified that he did not attend the hearing and, further, that he was in 1202 (fla. 1998)). “while prosecutors should be encouraged to prosecute cases prosecutorial argument in the penalty phase, as well as a claim of error in a jury exceptions.‟ ” schneckloth v. bustamonte, 412 u.s. 218, 219 (1973) (quoting applies with equal or greater force when a defense witness or evidence is sought to bryant, 131 s. ct. at 1160. the formality or informality of the police inquiry of comments in closing argument are intended to and do inject elements of emotion group in avenging wrongs suffered by the group‟s members by attacking a rival derives from the common law.” zeigler v. state, 402 so. 2d 365, 371 (fla. 1981). transporting the 9mm murder weapon in the mazda—provides the necessary nexus moreover, the search did not extend beyond what was necessary to locate the the person was under the stress or excitement caused by the event.” at 827. in the instant case, mccrae‟s statements were neither made while mccrae see also rimmer v. state, 59 so. 3d 763, 787 (fla. 2010). in mcduffie, which also connor, 803 so. 2d at 605; see, e.g., ornelas v. u.s., 517 u.s. 690, 699 (1996). (alteration in original) (quoting conde v. state, 860 so. 2d 930, 945 of the authenticity of the booking sheet. - 23 - diaphragm. there was a quart of blood in the abdominal cavity, which would have in response to the trial court‟s ruling that a discovery violation had occurred, story and that someone else was involved. about a half hour later, the detectives living room were the only ones home. further, the facts are not in dispute that the the supreme court applied the above principles to the facts in bryant to cannot be fixed—all of which suggest a pattern of dangerousness extending into motion was denied. clifford told him to write that he shot mccrae. delhall denied ever giving any included testimony of four witnesses, a detailed description of the bennett murder section 90.803(2), florida statutes (2008). in hudson v. state, 992 so. 2d 96 (fla. pembroke pines, where they stayed through the night. delhall also told butchko cumulatively were harmless. therefore, i respectfully dissent. contribute to the verdict or, alternatively stated, that there is no reasonable bennett‟s body. however, reversal is not mandated if the error was harmless melodee smith of the law offices of melodee a. smith, fort lauderdale, florida, - 63 - admissible excited utterances. even so, the inquiry now turns to whether the the court: she never said that. murder, and he confessed to the murder. there is no reasonable possibility that the that his girlfriend, marcia berry, who worked at american express in broward murder to protect negus, such proof did not require either allegations or proof that delhall in the guilt phase first that he actually committed the bennett murder, and such errors‟ may „deny to defendant the fair and impartial trial that is the improper prosecutorial comment in the penalty phase 8. the court reiterated in mcduffie that “a harmless error analysis is street, 471 u.s. 409, 414 (1985)). when analyzed solely under florida “hearsay” restaurant. with berry‟s consent, a search was done of her 1992 mazda protege were harmless in the guilt phase, we turn next to a discussion of the effect of these meet an ongoing emergency. they are testimonial when the finally, competent substantial evidence supports the conclusion that the primary purpose of the interrogation is to enable police assistance to presented in delhall‟s trial about the bennett murder clearly indicated that search of a residence because „[t]he reasonableness of an entry by the police upon but there may be other circumstances, aside from ongoing threatens the police and public is ongoing cannot narrowly focus on whether the could not say that a person in the victim‟s situation “would have had a „primary mr. lenamon: judge i‟m moving for a mistrial. miss the time, and that mccrae was also present. gooden said he left because he did be deemed “so prejudicial that it vitiates the entire trial, depriving the defendant of even though the trial court erred in excluding the booking sheet as a supreme court of florida man leaving the shop carrying a gun. gooden described how he entered the shop brothers killed mccrae. when the police arrived, they noted the presence of a state of florida, bond hearing and was in jail on that date. that evidence, in the form of his (fla. 2005)). evidence showed that delhall had possession of the car at the time of the shooting. in the gilbert bennett murder; (2) error in overruling objections to evidence of the . . . . first, defense counsel‟s explanation for not providing the booking sheet in delhall and possibly another male lived in the apartment. they knew that a car second, the extent of the evidence that was presented about the bennett penalty. i try to get a lawyer w/ friends of mine, but the money was - 61 - in the present case, evidence of the facts and circumstances of the bennett discretion is limited, however, by the rules of evidence and by the principles of not final until time expires to file rehearing motion, and prosecutorial comments in the penalty phase. delhall said when he first gave the statement to clifford, it did not include responsible for brothers negus, bobo, atiba, jamal, and dwight. he explained ripped you guys off for some dope and your brother agreed to kill possession of a firearm by a convicted felon.1 and the following proceeding was held:] a. no, sir. who richie b? mostly to his left side. she testified that the fatal gunshot wound was likely the the court: okay motion is denied. that provide an objectively reasonable basis for officers to believe that there is an entirely by dismissing it as an excuse. while this court has recognized that negus‟s trial. heard a series of gunshots coming from the direction of ray‟s auto service shop delhall continued to maintain that he did the shooting alone, although the police knew brother bobo was in jail at the time and brother jamal was a young teen. rather than simply seeking justice. on numerous occasions, as discussed earlier, butchko that he was driving berry‟s older model mazda with tinted windows, and warrantless search of his bedroom in which he was discovered hiding in a closet. state, 902 so. 2d 294, 295 (fla. 4th dca 2005)).9 call a custodian witness was denied. the case—delhall‟s motive for killing hubert mccrae. in discussing the 65 n.5 (fla. 2004)). “a motion for mistrial should be granted only when the error 2d at 371). these same principles apply when police are in the home lawfully, the police located the victim.” id. at 1156. the court stated that this “new context fair rebuttal of the defense closing argument” are proper, see pagan v. state, 830 not bar the use of testimonial statements for purposes other than establishing the on the admissibility of evidence will not be disturbed absent a clear abuse of - 21 - time, the only known eyewitness to the murder of another individual named gilbert orally, but there was no stenographer present. the stenographer did not arrive until witness against negus in the bennett murder. delhall continued to insist that he adjust well to life in prison. the trial court subsequently issued an order that the victim‟s statements to police in response to the question of “what had the ground in his auto repair shop in opa-locka. the parties stipulated that the delhall, but instead concerned the bennett murder and the subsequent arrest of psychologist. dr. fisher testified that delhall would likely adjust properly to the no one else was home. when asked if they could search, she refused but did allow prosecution.‟ ” 422 u.s. at 1165 (quoting davis, 547 u.s. at 822). the court or arrest . . . [is] inherent in the very nature of their duties as peace officers and ammunition in her car and did not know why a 9mm live round of ammunition was witness stand to produce hard proof at that time—proof that defense counsel was bryant, 131 s. ct. at 1155. the supreme court explained: “when, as in davis, they observed a car matching the description of the car seen leaving the mccrae raised on appeal. see fla. r. app. p. 9.142(a)(5); see also miller v. state, 42 so. bennett with which delhall‟s brother negus delhall was charged. the jury found interrogation under circumstances objectively indicating that the didn‟t do well. so he fired the lawyer, got the information that he could, hubert alibi witness, did not support his claim that he was with her when mccrae was held at which detectives ray hoadley, butchko, and bayas, sergeant rayborn, bags in the car. marcia berry testified that in 2001, she did not keep any the strong implication during cross-examination that delhall was involved discretion of the judge whether to grant bail). were given, but whether the statement is truly voluntary. brown, 422 u.s. at 601- 192 (quoting seibert v. state, 923 so. 2d 460, 468 (fla. 2006) (emphasis group on several occasions. id. at 99. in jackson v. state, 25 so. 3d 518 (fla. several times that only she and her several young children who were with her in the wadada delhall, const. for the reasons set forth below, we affirm delhall‟s conviction for first- interview given hours after the crime like crawford. however, because the delhall was in jail on the date of the arthur hearing contributed to his conviction. (2003) (quoting illinois v. gates, 462 u.s. 213, 232 (1983)). counters that the officers were present in the home with consent, and officer safety minimum, the police had reasonable grounds to believe that the individual hiding prejudicial that it vitiates the entire trial, depriving the defendant of a fair not correct. the above transcript excerpts show arguments that delhall is a cause. id. circumstances in this case, we find that delhall was not unlawfully arrested at his be excluded for a defense discovery violation, because there are few rights more being checked for weapons—he had none—the man was taken downstairs in - 13 - house. id. scope of proper argument. . . . in his [or her] determination to assure that appellant and stated as follows: of discretion.” mcgirth v. state, 48 so. 3d 777, 786 (fla. 2010). a trial court‟s significant in view of the fact that the jury recommended death by a vote of eight state, 679 so. 2d 747 (fla. 1996). and the relevance of the evidence of bennett‟s effort to spell out a comprehensive definition of „testimonial.‟ ” id. the supreme dangerous adult, who was dangerous from the time he was a child, and that he defense counsel responded that there was no real prejudice to the state because a and eluding and the subsequent altercation with officers, which delhall referred to overcome possible prejudice. mcduffie, 970 so. 2d at 322 (quoting casseus v. see also § 90.402-.403, fla. stat. (2008). “an appellate court will not disturb a enter and investigate an emergency, without an accompanying intent either to seize investigation of mccrae’s murder objection to admission of the mccrae affidavit. the main ground argued at trial we have cautioned in the past that a prosecutor shall not exceed the bounds the state correctly argues that although it contended throughout trial that government function or enforcement of law (great weight). difficulty breathing. hufnagel rolled mccrae onto his side to ease his breathing. so. 2d at 321. “a trial court‟s decision on a richardson hearing is subject to we conclude the trial court abused its discretion in admission of the photograph of “this court has long recognized that a prosecutor cannot improperly denigrate 6. clifford is actually a polygraph examiner. pursuant to a motion in appellee. murder, but to prove that smith had a motive to kill brown to keep her from thus, it appears that even though defense counsel could have provided the booking it more, but it‟s one, it‟s an excuse.” objection to this comment was overruled. substantially prejudiced by proof that he could not have done so. whether delhall attempt to put on any evidence or testimony to dispute that fact. hufnagel said mccrae gave him a description of the shooter‟s car as “a small gray sheet prior to delhall‟s testimony, counsel‟s failure to do so was not clearly shown butchko asked for assistance from william clifford, who was described as a returned and delhall told them that his brother, atiba, was with him in the car responders and public may continue.” id. at 1158. thus, bryant supports the when the domestic violence victim made the statements to police via a 911 call, her by undue prejudice.” id. (quoting hodges v. state, 885 so. 2d 338, 358 (fla. circumstances known to the officers were sufficient to warrant a person of an arthur hearing to determine if bond would be set for negus was held on motion to make. charge on trial. himself, which in criminal cases is condemned in the fifth amendment.‟ ” brown was in accord with witness testimony that delhall was the passenger of the car and - 66 - jail on the date of the hearing and did not get out until september 7, 2001. on was clarified by the prosecutor‟s remaining questions and comments regarding mr. lenamon: i think she did. about 3:30 a.m., and by then, delhall‟s mood had changed. he refused to give a antonio e. marin, judge - case no. f01-037081 involved admissibility of a report found in smith‟s possession which contained during cross-examination of delhall in the guilt phase, the prosecutor asked he would try to get a deal for three to five years to add to his probation, and that if of the occupants, tiese caldwell. there is also no dispute that she told the officers even if the unfired 9mm cartridge was irrelevant and should not have been mccrae to protect his own brother. certainly, the photograph of bennett‟s dead reasonable doubt, relief is denied on this claim. - 64 - statements were made in a formal interrogation hours after the events. see davis, county sheriff‟s substation after delhall was arrested for fleeing police in a car this court has explained that “relevant evidence of collateral crimes mr. lenamon: that‟s the motion. i‟m going to have a error, to prove beyond a reasonable doubt that the error complained of did not exception to the rule excluding hearsay under florida law. the trial court confrontation clause. id. at 1166. 451, 466 (fla. 2006) (quoting diguilio, 491 so. 2d at 1135). butchko. not the eyewitness who was prepared to testify against negus, delhall concluded county (great weight); (3) the murder was committed while delhall was on to negus‟s murder of gilbert bennett, the state did not contend that wadada decision to remand for a new penalty phase. any errors when considered alone or the guilt phase. information to the detectives when they arrived. during the time he was talking, illegal arrest without probable cause during that search. a suppression hearing was 930, 958 (fla. 2003). however, if the trial court abused its discretion in excluding sentence by a vote of eight to four, and the trial court ultimately entered an order fired at mccrae, was found in the mazda—and evidence that delhall admitted first planned to scare mccrae by showing him the gun, but that when he drove by call witnesses to impeach the character of the defendant, unless the delhall signed a the crime committed and the dangerousness of the prior violent felonies. this is considerable pain and having difficulty breathing and talking, the supreme court murder at that time; and that wadada delhall thus had a motive to kill hubert delhall‟s brother for that murder. cf. sexton v. state, 697 so. 2d 833 (fla. 1997) state, 439 so. 2d 840, 845 (fla. 1983). the state contends that the prosecutor mccrae shooting, negus told delhall that the state wanted the death penalty, and i agree with the majority‟s decision to affirm wadada delhall‟s conviction told police “rick” had shot him, indicating the appellant, richard bryant. id. argued that delhall deserves the “ultimate punishment” because it‟s for the “worst removed)). such a search must be “strictly circumscribed by the exigencies which mr. lenamon [defense counsel]: objection, i have a details of the crime to butchko after speaking with clifford, and that all the things you with these guys and they can do what they want with you.” delhall said individuals drove to the crime scene in a car matching marcia berry‟s car. delhall 2d at 468. “there is no catalog of all the exigencies that may allow a warrantless first, the record demonstrates that any error during delhall‟s cross- friend in mitigation. these witnesses testified about how, after his mother was complains that he was advised of his miranda rights too many times. the question prejudicial effect on the aggrieved party‟s trial preparation. id. at 774-75. this deeply disturbed as a court by the continuing violations of prosecutorial duty, separately below. we turn next to whether exclusion of the booking sheet was an did involve the necessary presentation of some information about the gilbert accordingly, i would affirm delhall‟s death sentence and his conviction. (sometimes called ray‟s auto shop or ray‟s auto body shop) located at 2143 what proof. now i am being put in a position that this jury doubts my client man named erwin bruce came to gooden‟s food truck to talk to him about thus, atiba was the only likely other brother who could have been a viable suspect consent of an occupant, tiese caldwell. even though she explicitly assured other evidence. thus, the trial court did not abuse its discretion in denying the clause.” id. the court then expanded this concept, stating: wadada delhall guilty of all the charges and the case proceeded to the penalty to help you. if you don‟t put yourself involved with the crime, i‟m going to leave rescue then arrived and began working on mccrae, during which time he died. emergency services then arrived and the victim was transported to the hospital phase trial. own behalf veiled innuendoes and suggestions of general criminality.” messer v. had been given the booking sheet. the trial court did not make any express finding mcduffie, 970 so. 2d at 322. often, a richardson violation involves a - 53 - real dispute over the date. in response, the prosecutor simply objected on the as similar fact evidence pursuant to williams v. state, 110 so. 2d 654 (fla. 1959). assailant was still in the home threatening her. the supreme court in davis held voluntarily and freely given. for all of the above reasons, relief is denied on this state, 855 so. 2d 1 (fla. 2003), the three levels of encounter that a person may round of 9mm ammunition manufactured by winchester found in one of the book we find that these cumulative errors so fundamentally tainted the guilt phase an appeal from the circuit court in and for dade county, argument concerning the sentence). reported that the passenger side of the car was toward the shop. more time toward the shop. the man then got into the passenger side of the car inflammatory that they might have influenced the jury to reach a more severe statement confessing to murdering mccrae because clifford told him the officers delhall‟s mitigation as “excuses”; and (10) error in numerous improper - 56 - in the guilt phase concerning the bennett murder. opa-locka boulevard in opa-locka on november 29, 2001. around 6:50 p.m., he proper,” although error in conducting a richardson inquiry, even if harmless mccrae‟s statements to police at the scene of the shooting. a trial judge‟s ruling whether an actual emergency existed in the residence; only the reasonableness of from the confession by only two hours, with no significant intervening event. id. test “is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a mccrae continued to have labored breathing and a look of pain on his face. fire - 68 - was still being threatened by the assailant, nor were they made in a formal the state would ask the question and then demand proof. he stated, “they said informs the ultimate inquiry regarding the „primary purpose‟ of an interrogation.” specific inquiry, and stated: “an assessment of whether an emergency that over delhall‟s objection, the state presented a substantial amount of dangerousness. the trial judge then chastised the prosecutor: “you keep saying that when his brother negus was arrested for bennett‟s murder, delhall hired paul the bennett murder; (4) error in excluding the broward county jail booking report; but reviewing de novo a trial court‟s application of law to the historical facts. the prosecutor also asked delhall to confirm that an individual named conroy 2d 771 (fla. 1971), that the trial court must conduct an inquiry as to whether the absolutely necessary to prove motive, delhall cannot demonstrate that the evidence things circling the photograph of the shooter on the line-up and earlier murder by smith. we held the report was not inadmissible hearsay because were not testimonial under recent supreme court precedent, and thus did not a brief continuance to authenticate the document to the satisfaction of the state. even so, the court in bryant commented that davis did not set forth an exhaustive gore, 719 so. 2d at 1202 (quoting berger v. u.s., 295 u.s. 78, 88 (1935)). “when evidence presented in the guilt phase of the trial. murder. a fingerprint lifted from the outside of the office door at the scene of - 2 - supreme court in michigan v. bryant, 131 s. ct. 1143 (2011). in bryant, the defendant‟s execution would have on them, but gave this mitigation little weight. of gilbert bennett, a murder for which he was not on trial. while the state‟s case delhall‟s brother as the person involved in the murder of bennett. the prosecutor assistant attorney general, miami, florida, the court: she did not. 7:38 pm. when the prosecutor objected, the trial court asked her if there was any admission of mccrae’s affidavit concerning the bennett murder believe mccrae was an eyewitness who would testify against his brother, of an accident, and several misdemeanors. this prior violent felony conviction the victim is another factor. the questioning in bryant, which occurred in a to be introduced—a simple booking sheet that the prosecutor could easily verify— establish motive. see, e.g., victorino v. state, 23 so. 3d 87 (fla. 2009); foster v. officers more than once that no one else was in the apartment, detective bayas at the jury trial held in june 2008, - 49 - id. at 107 (quoting henyard v. state, 689 so. 2d 239, 251 (fla. 1996)). in this truth of the matter asserted.” crawford, 541 u.s. at 60 n.9 (citing tennessee v. confession, delhall told butchko that he carried two firearms in that car—a .38 02. the supreme court explained: sheet at that point in the proceedings, she did initially challenge delhall on the moment. certainly before the case. not the case necessarily, so. 2d at 328. physically matched the description of the shooter given by witnesses. the police her improper advocacy continued even after an objection was sustained. in one he ripped off. - 33 - of-fact.” id. at 1139. applying this test, and considering how both the permissible her again if anyone else was there. she said there was not, but bayas insisted that (1886)). the supreme court has made clear that miranda warnings do not remedy private property is measured primarily by the totality of existing circumstances.‟ ” impermissibly becomes a feature of the trial when the evidence and other evidence proving delhall guilty of murdering mccrae. therefore, there errors, standing alone, could be considered harmless, the cumulative effect of such court finds that mccrae‟s statements to officer hufnagel, admissible under allowed to testify again that he was in jail in broward county on september 6, your brother, your brother that‟s locked up.” when shown a copy of the statement richardson inquiry instruction in the penalty phase.2 alone, got out of the car with the semiautomatic in one hand and the revolver in the - 54 - - 15 - by the confrontation clause. id. at 1150. the shooting in bryant had occurred (fla. 2005) (quoting spencer v. state, 645 so. 2d 377, 383 (fla. 1994)). 2008), we explained that: circumstances surrounding the bennett murder. this evidence was not submitted source of the noise heard by bayas and to determine there was no immediate threat after hubert mccrae was killed, the police located another eyewitness to q. you don‟t have those kind of tattoos that your brother has? error in exclusion of the booking sheet delhall‟s death sentence and remand for a new penalty phase proceeding, we do harmless error test as placing „the burden on the state, as the beneficiary of the miami-dade police officer michael hufnagel arrived at the scene of the disorganized fashion outdoors prior to the arrival of medical services, was an originally admitted into evidence at negus delhall‟s arthur hearing and was read interrogation and in determining the primary purpose of police questioning. see he came back around 10 p.m., or a little later, and they went to checkers place in the warehouse district where the bennett and mccrae murders occurred. based on the foregoing, we affirm delhall‟s judgment and conviction for an occupant. due to exigent circumstances, the police discovered him hiding in a picking her up from work at 6:30 p.m. delhall told butchko that after going to a was reasonable under all the circumstances present. we reiterated in taylor v. florida rule of criminal procedure 3.220(n)(1) allows a trial court to incumbent upon the state, as the aggrieved party, to show substantial and material [t]he prosecutor‟s characterization of the mitigating circumstances as broward county jail booking sheet that showed he was in jail at the time of - 41 - 2001, and did not get out until september 7, 2001. delhall also testified that raises a fourth amendment issue concerning whether delhall was essentially we also conclude that the statements were given after delhall waived his grounds that it was never disclosed in discovery and was a richardson violation. of danger. later confession at the police station. the truth of the matter asserted—that mccrae actually identified negus as not handcuffed on the ride to the station or when he arrived there. once at the voluntariness of the statement is the threshold requirement.” id. at 603-04. the canady, j., concurs. concluded that the statements met the excited utterance exception to hearsay under penalty phase proceeding. circumstances as “excuses,” was clearly an improper denigration of (2) “before there was time to contrive or misrepresent”; and (3) “while a. no. supreme court noted in brown that the illegal arrest in that case was separated when questioned further about the murder of mccrae, delhall denied any detain a person if the officer has a reasonable, well-founded, and articulable proceed. the prosecutor‟s next comment was, “his violence speaks for itself. delhall‟s motive to kill the witness, hubert mccrae. we have approved admission we conclude that the trial court did not abuse its discretion in admitting the law, i.e., whether it is an out-of-court statement offered in court for the truth of the they found blood, a bullet hole in the door, and the victim‟s wallet inside the dissimilar fact evidence showing a continuing chain of violent events leading up to located in a backpack containing other items related to delhall. in his oral explained next, the trial court abused its discretion in excluding the booking sheet exclude evidence for a violation of discovery rules, but exclusion “should only be immediate need for protection of themselves or other occupants. the court: i believe she didn‟t. is that the motion? some of which was unnecessarily gruesome—concerning the bennett murder. (fla. 2011): 2010) (quoting chavez v. state, 832 so. 2d 730, 747-48 (fla. 2002) (quoting (5) error in overruling objection to mccrae‟s statements to officer hufnagel; (6) the bennett murder—clarence gooden. gooden used to operate a food truck in some documents from the broward county sheriff‟s office. the state did not discussed below, are the basis for this court‟s reversal of the penalty phase. matter asserted, it can be seen that mccrae‟s affidavit was not inadmissible wadada delhall, age twenty-four at the time of the murder, was indicted on 1998. the evidence showed that delhall‟s brother negus was subsequently 2004)). denying a mistrial. the jury considered all of delhall‟s mitigation evidence as standing alone, may be reviewed cumulatively with other errors that are found to - 18 - johnson v. state, 969 so. 2d 938, 949 (fla. 2007). have stopped questioning him and let him go, but that delhall never said he wanted it is well-settled that when a discovery violation is committed by the state, involve a gun. see bryant, 132 s. ct. at 1164. where a gun is concerned, the fact admitted, any error is harmless beyond a reasonable doubt. the evidence declaration of a mistrial. . . . delhall also contends that the trial court erred in allowing into evidence the - 46 - statements are nontestimonial when made in the course of police mccrae‟s shop he “thought he would leave it in god‟s hands. . . . if god didn‟t also recognized that the circumstances of davis, where the domestic violence house, he dropped off another brother, jamal, at home and then went to a music station, a miranda5 for the protection of life or substantial property interests.” twilegar, 42 so. 3d at statement. 3 p.m. on november 29, 2001, and that when delhall picked her up, atiba was pulls the trigger and the bullet hits the victim.” id. one to the right side of mccrae‟s abdomen, which resulted in a projectile traveling prosecutor stated, as a preamble to a question, that delhall participated in the be employed to overcome . . . possible prejudice,” including evidence that the round of ammunition, which matched the caliber of ammunition limine, the state was not allowed to disclose the fact that clifford was a polygraph an unfired round of ammunition of the same caliber that was used in shooting gooden because he is looking for whoever is hubert mccrae. . . . that‟s what this lying in a pool of blood. the asserted purpose for presentation of the evidence also found that friends and family testified of the devastating impact the delhall’s confession and william clifford testified. the trial court denied the motion. argument—characterizing the defendant‟s mitigation as excuses—was also held to subsequent to a warrantless search of his apartment and what he contends was an only minimal contact. id. at 14. the second level, an investigatory stop as affidavit that hubert mccrae made in the bennett murder case. that affidavit was of the confrontation clause, contrary to the holding of crawford. the court in although we find that the errors in the state‟s cross-examination question, proceeding.” wade, 41 so. 3d at 872 (quoting floyd v. state, 913 so. 2d 564, 576 that delhall was involved in the bennett murder, the trial court denied the motion to wadada delhall in pembroke pines. they had reasonable grounds to believe wadada was either the shooter or the reason to believe mccrae would be a witness against negus, regardless of the waiver of miranda rights signed by delhall before he confessed. descriptions of burglary; (9) error in overruling objections to prosecutor‟s comments concerning explaining how, after his mother was arrested and deported back to jamaica several and the admission of unnecessarily prejudicial evidence of the bennett murder testifying. see smith, 7 so. 3d at 497-98. similarly, in the instant case, mccrae‟s to both the charge of murder and the charge of possession of a firearm by a mitigation during a closing argument.” williamson v. state, 994 so. 2d 1000, identified as hubert mccrae. after learning that mccrae had identified his “fluid concept—turning on the assessment of probabilities in - 30 - the court: do you. come sidebar. conclusion that an ongoing emergency existed when delhall left the scene firing a personnel arrived and while mccrae was injured, and because the perpetrator had addressed denigration of mitigation as “excuses” and held: the guilt phase the officers testified at the suppression hearing and at trial that they did not mccrae was shot with 9mm ammunition made by various manufacturers, although mixed question of law and fact that ultimately determines constitutional rights and dca 2007). here, the defense committed the discovery violation, but it was wadada delhall‟s knowledge of mccrae as a possible witness against negus, thus 3. state v. arthur, 390 so. 2d 717 (fla. 1980) (entitling a capital or life precedes the confession, the pertinent inquiry is not whether miranda warnings neat set of legal rules.” maryland v. pringle, 540 u.s. 366, 370-71, motive for murdering mccrae. objection was sufficiently preserved by counsel‟s passing reference to “crawford” purpose‟ „to establish or prove past events potentially relevant to later criminal was relied on as an aggravating factor in the sentencing order. the state also and found bennett lying on the floor in a pool of blood. gooden testified that it about twenty minutes earlier at another location, and the victim had driven himself almost always made for the purpose of compelling a man to give evidence against cumulatively with error that occurred in the penalty phase, these errors - 51 - 5. miranda v. arizona, 384 u.s. 436 (1966). id. at 904; see also franqui v. state, 59 so. 3d 82, 98 (fla. 2011) (holding that testimony and evidence concerning the earlier murder of gilbert bennett at that non-domestic dispute, involving a victim found in a public location, suffering from work at the j&b body shop on november 29, 2001, and heard a series of shots. roslyn mccrae, his daughter; and andrew benjamin, a cousin. shop and shot him. i‟m sorry. but i got [to] take responsibility. the bennett murder; that hubert mccrae was the sole eyewitness to the bennett the prosecutor also contended that she had no way to investigate its authenticity. conditions for admission were met. see crawford, 541 u.s. at 51. the affidavit in state and federal rules of evidence, not the confrontation clause. under indictment for different crimes not constituting a part of the search conducted without a warrant issued upon probable cause is „per se mitigation evidence was “excuses.” delhall‟s objection was sustained, but shortly who he was and did not know if he was armed, a temporary investigatory detention - 38 - the jury returned a verdict finding wadada delhall guilty as charged on all counts. should be reviewed using a two-step approach—deferring to the trial court‟s verdict than that it would have otherwise.” brooks v. state, 918 so. 2d 181, 207 earlier on november 29, but that he had dropped him off before the shooting. impact. importantly, the evidence did not involve crimes or bad acts committed by the prosecutor‟s question violated the rule laid down in messer and foy in that it 855 so. 2d at 15. the third level is an arrest, which must be supported by probable designed to identify some statements as reliable, will be relevant. mazda, possibly a 323” with tinted windows, and hufnagel relayed this we conclude that the trial court abused its discretion in denying the motion detectives to the police station. evidence further established that he was circumstances, the court found delhall‟s family background and positive family subsequently that he was involved in the planning of the bennett murder with his state, 714 so. 2d 423 (fla. 1998), we approved admission of dissimilar fact court abused its discretion in excluding the defense evidence as a sanction for a bench and conferred with the court outside the hearing of the jury proceed to obtain a confession. we recently explained: possibility that the error contributed to the conviction.‟ ” ibar v. state, 938 so. 2d a fourth amendment violation. brown, 422 u.s. at 601. where an illegal arrest - 12 - katz v. u.s., 389 u.s. 347, 357 (1967)); see also twilegar v. state, 42 so. 3d 177, impose a death sentence are improper and “prosecutorial overkill.” teffeteller v. bennett murder in order to show delhall‟s motive for killing the eyewitness to that - 50 - that the murder was committed to eliminate a witness and that the murder was detective john butchko began searching for negus‟s brothers, wadada and atiba, 695 so. 2d 687, 687 (fla. 1997) (reversing steverson‟s conviction and statements were made at the scene shortly after the shooting, before emergency years earlier, he began caring for his brothers, the youngest of whom was an infant. no other eyewitness apartment and at the police station, that he was not under arrest. the evidence state and transported back to miami from virginia beach, virginia. statements. bryant, 131 s. ct. at 1153. the court recognized that it had not objectively reasonable, articulable fear that a person carrying a gun might be in the of creating an out-of-court substitute for trial testimony. in making into any possible alternatives to the drastic sanction of exclusion. thus, the trial the court in bryant also explained that davis was not intended to define the id. the supreme court also distinguished bryant from davis and crawford by the state‟s case did not hinge on proving that delhall attended the bond found to be nontestimonial. the court explained, “we now face a new context: a the car in which the murderer left the scene matched the car owned by delhall‟s violent.” at one point, when the prosecutor argued that delhall is dangerous, the objection to hearsay, officer hufnagel testified that mccrae said “it was the 9. see also rodriguez v. state, 919 so. 2d 1252, 1271 (fla. 2005) (noting hubert mccrae was found still alive but with multiple gunshot wounds, lying on brown, 422 u.s. at 603. miranda warnings are a pertinent factor, as are the reversal only upon a showing of abuse of discretion.” conde v. state, 860 so. 2d little weight was also given to the testimony of dr. fisher that delhall would delhall‟s brother was the individual arrested, charged, and later convicted of civilian employee who sometimes assists in interrogations.6 handcuffs were removed and delhall was not placed under arrest. florida law as excited utterances, were not testimonial and thus not barred by the - 52 - unobjected-to improper comment. see brooks, 762 so. 2d at 899. this principle no. sc09-87 “took a further step to „determine more precisely which police interrogations guilt phase errors when considered cumulatively with error committed in the all relevant evidence is admissible, unless its probative value is substantially a brother because of a lie, so in desperation i went by my self to the thereafter the prosecutor again argued that “every single thing that was presented as we explained in connor, a trial court‟s ruling on a motion to suppress is a a fair proceeding.” floyd v. state, 913 so. 2d 564, 576 (fla. 2005). murder. some of delhall‟s personal possessions were found in the car, along with be found? public. id. at 1166. thus, the statements in bryant were held to be “the type of richardson violation. to four—a recommendation that was far from unanimous. because we now vacate per curiam. independently review the sufficiency of the evidence in every case in which a v. state, 863 so. 2d 271, 278 (fla. 2003)). the court‟s discretion is also abused if establish or prove past events potentially relevant to later criminal delhall first contends that his confession should have been suppressed this description of the side of the car facing mccrae did not comport with statements made subsequent thereto, to be broken, wong sun [v. u.s., anything about the murder. it was some days later that gooden learned mccrae is not limited to improper comment. the court has held that “[w]here multiple found a latent print identified as belonging to wadada delhall. a fatal gunshot wound, and a perpetrator whose location was unknown at the time revolver. delhall also reported dropping berry off at home shortly after 6 p.m. and handcuffs and spoke to several officers at length. no threat or force was used. he involvement or knowledge of the facts. delhall had agreed to go to the station death sentence because state‟s presentation of excessive collateral delhall argues that this affidavit was inadmissible testimonial hearsay in violation polston, c.j., concurs in part and dissents in part with an opinion, in which incident to a lawful arrest in the apartment. however, exceptions exist which in the closet might take violent action based on the fact that he was hiding from had happened, who had shot him, and where the shooting had occurred,” the victim after clifford obtained the written confession, butchko returned and questioned - 10 - attending the arthur hearing, delhall, who appeared in his own defense during the for mistrial. where, as here, counsel simultaneously objects to an improper delhall testified that on november 29, 2001, he picked up berry from work, lawful in-home arrest. into alternative sanctions because exclusion of exculpatory evidence boulevard, miami dade county. “regarding an event startling enough to cause nervous excitement”; i‟m sorry, for being in this prodickument (sic). but, i was left brother of the guy that shot the man that owned the business before.” the state matters into his own hands. he met with the lawyer and he found out why his the shooter. delhall further contends that because caldwell denied permission to comment and moves for mistrial without obtaining a ruling on the objection, the butchko said about delhall selling the guns on the street and putting the decision but by this time, i was already out of time. so the love of my brother incident in broward county in which he said officers beat him after he was “[p]olice may enter a residence without a warrant if an objectively reasonable basis which party is at fault. the following questions will be examined in turn: pointed out that the question to the victim in bryant asking “what had happened” established that the police knew one of negus‟s brothers shot mccrae and that two ____________ mccrae from negus‟s first lawyer, who had attended the arthur hearing where the as to possible prejudice to the state in preparation of its case, the prosecutor delhall had visited negus in jail and was very disturbed by the fact that he was - 19 - defense counsel argued first that there was no way he could have anticipated that matching the shooter‟s car was parked outside the apartment. under these brother wasn‟t with me. i can‟t do that to my mother. . . . i can‟t face yet, she continued in spite of this admonition. inquiry, but the discussion between the court and counsel qualified as a limited v. illinois, 422 u.s. 590, 601 (1975) (quoting boyd v. u.s., 116 u.s. 616, 633 to you in mitigation, which i really think was one thing, stretched it out [to] make if he were to cut off her drug supply. id. at 428. principles of crawford. thus, relief is denied on this claim. along with wadada. even if police were not sure which brother did the shooting, court will review the record to determine if the inquiry was properly made and if police interrogations, would violate the confrontation clause unless certain most favorable to sustaining the trial court‟s ruling.” connor v. state, 803 so. 2d for testimony] exists, the admissibility of a statement is the concern of delhall next contends that the trial court erred in excluding evidence of a george hertel, a criminalist supervisor at the miami-dade police assailant was still threatening the victim, happened to be the factual situation at my mother by saying my brother is involved in this. i‟m not giving a inalienable right of all litigants in this state and this nation.‟ ” mcduffie, 970 so. abuse of discretion. mccrae. viewing the competent, substantial evidence submitted at trial in the not the manufacturer of the 9mm ammunition in the backpack. finally, delhall implicates the defendant's constitutional right to defend himself or absolutely no reason why this should not have been given to the hearing. in any event, delhall testified several times that he did not attend the confrontation clause. thus, relief is denied on this claim. for extreme circumstances) (citing tomengo v. state, 864 so. 2d 525, 529 (fla. 5th - 25 - [july 12, 2012] requires us to provide additional clarification with regard to what davis meant by errors [may be] such as to deny to defendant the fair and impartial trial that is the - 29 - reflection. thus, the trial court was correct in determining the statements to be (citing schoenwetter v. state, 931 so. 2d 857, 871 (fla. 2006)). the defendant davis v. state, 834 so. 2d 322, 327 (fla. 5th dca 2003) (quoting zeigler, 402 so. the officers were in delhall‟s apartment with the consent of tiese caldwell, was that the out-of-court statements were unreliable hearsay. in order to preserve a canady, j., concurs. testimonial out-of-court statements under crawford and, as it drove away, shot one more time out the window. williams said the car never again implied that delhall murdered bennett. and the other evidence - 9 - a. no. handcuffs. once the officers learned that the man was wadada delhall, the - 55 - was charged with both murder and possession of a firearm by a convicted felon. 192 (fla. 2010) (noting that although a warrantless search of a home is per se - 45 - herself. my gun. he was tugging on my gun.” after closing argument in the guilt phase, victorino v. state, 23 so. 3d 87 (fla. 2009), we found relevant and admissible - 31 - the primary purpose of an interrogation is to respond to an „ongoing emergency,‟ admission of dissimilar fact evidence, we stated in mccray v. state, 71 so. 3d 848 in a pool of blood. delhall also contends that the trial court erred in failing to rather, it can be characterized as dissimilar fact evidence pertinent to an issue in questions. of multiple gunshot wounds and that the manner of death was homicide. dr. lew delhall does not challenge the sufficiency of the evidence to support the killed. thus, under brown, the totality of the circumstances tends to show that “can‟t be fixed,” that “he acts with violence,” and “[f]rom a school child he was unreasonable, “several exceptions to this rule have developed”) (citing mincey v. trial of the instant case over defense objection of hearsay. rights form was read to him, after which he initialed each right appellant, “a motion for mistrial should be granted only when the error is deemed so court to determine whether any other reasonable alternatives can be employed to nontestimonial statements we contemplated in davis” and were not barred by the make a motion for mistrial and argued that the prosecutor violated the court‟s have with law enforcement. the first level is a consensual encounter that involves or the presumption great in order to deny bail, and holding that it is in the sentencing delhall to death. this appeal ensued. delhall raises ten issues on not reach other penalty phase claims raised by delhall, nor do we reach the issue of such as in this case with consent of one of the occupants, and circumstances arise negus‟s arthur hearing. the defense raised a factual issue as to when delhall whole truth. he then admitted that atiba was with him and was the one driving of proper conduct and professionalism by overzealous advocacy, which is that the man who worked at ray‟s auto service must be the sole eyewitness discovery was essentially that he could not have anticipated that the state would bradley v. state, 787 so. 2d 732, 738 (fla. 2001)). that test is met in the evidence threat: “an emergency does not last only for the time between when the assailant excuses. when reviewing error in prosecutorial argument, it is appropriate to its purpose is not to create a record for trial and thus is not within the scope of the and signed the form. when asked about his activities on november 29, 2001, first-degree murder. we vacate the sentence of death and remand for a new 4. i viewed a photo line-up on april 29th, 1998, and identified delhall further about the details of the murder. according to butchko, at that point the interview room after telling delhall they thought he was not giving the whole was vanishing away forever, so in my heart i feel like i wouldn‟t have q. an[d] once, once you found out and your brother found out denying the motion for a mistrial. a complete review of the cross-examination [thereupon, counsel for the respective parties approached the exists for the officer to believe that there is an immediate need for police assistance was a small, light-colored car with tinted windows. rolando rodriguez was also at the case proceeded to an august 13, 2008, penalty phase proceeding. lay injured, he told a responding officer that the person who shot him was “the here, exclusion of the evidence produced only the person of wadada delhall, we turn next to delhall‟s argument just left the scene while still shooting from the window of the car—circumstances - 11 - pronouncing sentence in a death case, the trial judge shall hold a hearing at which crawford objection to hearsay as violative of the confrontation clause, “a specific during closing argument, defense counsel lodged numerous objections to state, 913 so. 2d 564, 576 (fla. 2005)). bennett‟s murderer—but was only offered to show that delhall had reason to threat solely to the first victim has been neutralized because the threat to the first heard unidentifiable sounds coming from the bedroom, which was adjacent to the substantial evidence, a more probable than not, a clear and convincing, or even an - 28 - is improper where the probative value of the evidence is substantially outweighed affidavit was presented. because the mccrae affidavit was not offered to prove evidence. the 9mm cartridge was found in the mazda driven by delhall, and was as to delhall‟s guilt, may be viewed cumulatively with the error in the penalty 997 so. 2d 382, 391 n.3 (fla. 2008) (citing dessaure v. state, 891 so. 2d 455, 464- that wadada delhall was involved in the murder of bennett were highly improper, prior to sentencing delhall, the trial court held a spencer7 penalty phase of the trial. but denied that atiba was with him. he testified that after he left marcia at her “[t]he failure of either the state or a defendant to comply with a discovery while the mitigator may be valid, perhaps its weight should be somewhat [t]o qualify as an excited utterance, the statement must be made: (1) police were at the apartment because they had information that one of negus‟s a photograph of the man i saw enter my business and shoot gilbert it is so ordered. recorded statement, saying: defendant knew.” trial court erred in excluding the booking sheet; and whether any error was prior testimony at a hearing, trial, or before a grand jury, and statements given in he “just heard a noise behind me.” when he heard the sound again, bayas a. he has one tattoo from what i remember. q. after your brother took the contract to kill him and after voluntarily, and was not arrested until after he confessed. delhall was advised of main issue of guilt or innocence into an assault on the character of the crawford did not define “testimonial statements,” but noted that statements such as states constitution. - 22 - delhall was not free to leave the interview, but he agreed to continue speaking with the actions of the officers, without a warrant or probable cause, thereby tainting his evening of april 24th, 1998, and answered all of the detective's present when it occurred. statements as inadmissible hearsay. id. thus, an express crawford objection was given the booking sheet. id. at 822 (emphasis added). the ongoing emergency in davis was the fact that opa-locka boulevard. williams looked in that direction and saw a slim, brown- deprived delhall of a fair proceeding. see id. where a discovery violation occurs, we held in richardson v. state, 246 so. (reversing defendant‟s murder conviction where the state presented the testimony cousin, who cared deeply for his family and felt responsible for taking care of his was held on september 6, 2001. the mccrae affidavit was presented at the bond police in the first instance. as the officers testified, when they learned that he was where he died. id. the police left the scene and traveled to bryant‟s house where reasonable caution to believe that delhall was involved in the mccrae shooting. not even, so i even got church members to raise charity from church, own defense. 970 so. 2d at 321. the “extreme sanction of excluding [defense] identified as bennett‟s murderer and had been arrested and charged. as mccrae 541 u.s. 36 (2004), and its progeny. as explained below, mccrae‟s statements stated: because the error in excluding the booking sheet was harmless beyond a we are compelled once again to emphasize that the prosecutor has a “duty to case did not hinge on proof that delhall attended the bond hearing to learn about deprive delhall of a fair guilt-phase proceeding when considered in light of all the after the state rested, wadada delhall testified in his own defense, was actually the first resort, not the last. defense counsel asked for but was denied was “to enable police assistance to meet [the] ongoing emergency.” id. at 1165 trial court‟s determination that evidence is relevant and admissible absent an abuse clifford told him they could find out if he had had any dealings with mccrae, errors are found, even if deemed harmless individually, „the cumulative effect of taken minutes to occur. assume you had it in your hands before that. it just didn‟t come in was a warrant for his arrest for the murder of richie b, someone circumstances, when detective bayas heard the noise, he had a well-founded, and sometimes without objection, that delhall is “violent,” “dangerous,” that he mazda automobile, which they knew matched the description of the car driven by recognize the validity of his objection during his cross-examination when the circumstances objectively indicate that there is no such ongoing especially egregious in a death case “where both the prosecutors and courts are phase committed by the overzealous prosecutorial argument that delhall has murdering mccrae, who was at the time the sole known witness to the bennett violation: (1) was willful or inadvertent; (2) was substantial or trivial; and (3) had a - 14 - brothers, including an infant. delhall was described as a loving son, brother, and evidence, the “extreme sanction of excluding [defense] evidence . . . mccrae working on a sport utility vehicle but kept driving. he then came back into evidence in this case. it stated: same repair shop in 1998, which was referred to by mccrae. the evidence [been] or is being committed.” caraballo v. state, 39 so. 3d 1234, 1246 (fla. was unfairly prejudiced by the exclusion of the booking sheet is discussed which suggested at a minimum that delhall was involved in the murder of bennett, motion for mistrial. however, this error may be viewed cumulatively with other those in davis than in crawford. penalty phase proceeding. we agree. first, the prosecutor argued that delhall‟s delhall guilty of first-degree murder. we turn next to delhall‟s claim that his as a sanction for a richardson violation. the question of whether the error was the sole witness against smith in a separate murder case. id. at 485. smith substantial evidence to support a verdict . . . and even though each of the alleged stay in school. the jury, by a vote of eight to four, returned an advisory verdict suspicion that the person has committed or is about to commit a crime. see taylor, were harmless beyond a reasonable doubt as to the guilt phase, when considered a. i don‟t know who that was conroy turner. respects.” brooks, 762 so. 2d at 905 (quoting gore v. state, 719 so. 2d 1197, court subsequently explained in davis v. washington, 547 u.s. 813 (2006): this assessment is borne out by the recent decision of the united states forward as a witness. gooden described how he was parked near the shop in 1998 with him. around 5:15 p.m., wadada and atiba drove her home to pembroke murder, along with the prosecutor‟s improper remark during cross-examination, shows that the prosecutor was accusing delhall‟s brother, not delhall, of murder does not provide any basis to remand for a new penalty phase. this court prosecutor made repeated comments about the violent and vicious nature of the in the closing arguments, the state again noted, “so this defendant had to dealing, where the theory of the state‟s case was that jackson killed the victim proceeding meaningless.” garron v. state, 528 so. 2d 353, 359 (fla. 1988). delhall kill bennett or that mccrae actually picked a photograph of bennett‟s argued only that she would not have challenged wadada to produce proof if she because of [the] question posed by the prosecutor on a death penalty case.” the (emphasis added). after failing to recognize that the prosecutor had, in fact, stated the state‟s theory of the case was that wadada delhall learned that hubert emergencies, when a statement is not procured with a primary purpose testified about the autopsy report on hubert mccrae. dr. lew testified that after (fla. 2005)). for a new trial to be warranted, the comments “must either deprive was precisely the type of question that would allow police to assess the situation, were error. as explained more fully below, even though we conclude these errors the grounds that they were obtained in violation of his fourth amendment rights the officers had reasonable concern and articulable well-founded suspicion that 9mm cartridge found in a backpack in marcia berry‟s mazda less than a week after chase. the state presented the judgment and sentence for aggravated fleeing and charged with bennett‟s murder and might be facing the death penalty. in order for the causal chain, between the illegal arrest and the pamela jo bondi, attorney general, tallahassee, florida, and sandra s. jaggard, negus in the prosecution of the bennett murder case. the state also presented the presented the written, signed confession of wadada delhall admitting to the (2001), unlawful discharge of the firearm resulting in death or serious bodily harm no dispute that the police were inside delhall‟s apartment with the consent of one sheet substantially prejudiced the state in the preparation of its case, as richardson or contemporaneous objection in which he raised an express confrontation clause mcduffie, 970 so. 2d at 322 (citations omitted). the state presented evidence that delhall murdered mccrae because he was, at that brief computer check on the prosecutor‟s own computer would verify the accuracy proportionality of the death sentence. counsel also suggested the state could perform a computer check to verify the the murder and, in this version of events, claimed to have acted alone. delhall told were considering arresting his fourteen-year-old brother, jamal. he said he arizona, 437 u.s. 385, 392 (1978)). we have recognized “[t]he right of police to testified that he could not recall wadada coming to him after the bond hearing to hubert mccrae, affiant. testifying against negus. when he visited negus in jail a few days before the which negus delhall was arrested. the arthur bond hearing for negus delhall detectives julio estopinan and gus bayas, finally located an apartment connected you know what? sometimes it‟s really sad a person can‟t be fixed.” she further - 27 - polston, c.j., concurring in part and dissenting in part. on december 6, 2001, he searched the mazda and found, among other things, a 393). the search must cease once the officer determines that the emergency does the gilbert bennett murder his right to remain silent and to have an attorney present, and waived those rights bennett murder; (3) error in overruling objection to mccrae‟s affidavit concerning trial court sustained the objection but the prosecutor simply continued to argue is no reasonable possibility that the error in excluding the paper documentation that around noon and, once there, butchko‟s questioning lasted until about 3:30 p.m., at fact could have found the existence of the elements of the crime beyond a for mistrial based on the prosecutor‟s repeated improper comments on delhall‟s emergency and were not testimonial. noting that the victim was obviously in transported in an unmarked car without handcuffs and was not handcuffed at the - 39 - murder of mccrae. therefore, even if the state presented more evidence than of the worst.” when the court called a recess, defense counsel was allowed to - 16 - 7. spencer v. state, 615 so. 2d 688 (fla. 1993) (reiterating that before the 911 statements to be nontestimonial and thus admissible. the court murder of mccrae, in which delhall said he shot mccrae to protect his brother circumstances, and the purpose and flagrancy of the official misconduct, but “the those children to show how the defendant could have influenced his son to kill his to prove the truth of the allegations against negus but to prove that delhall had a department crime laboratory, testified concerning a report prepared by a former consent form to allow questioning by clifford, and butchko left to contact emergency, and that the primary purpose of the interrogation is to butchko agreed there was no eyewitness identification of the person who did the murdering bennett. therefore, any error was harmless, and the questioning cannot police were “calculated to cause surprise, fright, and confusion.” id. because he started looking for hubert mccrae and you know that from clarence apparent stomach wound. mccrae told officer hufnagel that he was having affidavit was not admitted to prove negus killed bennett. it was admitted to prove id. at 877. “regardless of relevancy of collateral crime evidence . . . admissibility 598, 605 (fla. 2001) (quoting murray v. state, 692 so. 2d 157, 159 (fla. 1997)). immediately drew his gun and went to the adjacent bedroom, and within seconds bryant, 131 s. ct. at 1155 (bracketed material added). the case offered by brooks and brown in mitigation. trial court also noted that there was no custodian of records listed to testify about the court: what‟s the motion? shot out of the window of the car. mccrae to protect negus in that prosecution. however, the state presented a several times that he was not under arrest. based on the totality of the of dissimilar fact evidence of other crimes to prove motive in other cases. in jury, or needless presentation of cumulative evidence.” miller, 42 so. 3d at 224; mccrae and, based on the leasing agent‟s information, had reason to believe that claim. right to remain silent. there is no dispute that delhall was given his miranda defendant as well as other improper comments). delhall. these comments, standing alone, did not vitiate the entire guilt phase or was with marcia berry at the time of the mccrae murder. pursuant to department this time.” the court refused to admit the broward booking sheet, but delhall was are sorry for being in this predicament and tell them stuff that you will do to help recommending that delhall be sentenced to death. as discussed in detail below, delhall initially reported that he was with his girlfriend, marcia berry, after january 8, 2002, for the november 29, 2001, first-degree premeditated murder of murder investigation were admitted to prove that wadada had a motive to kill was negus delhall who shot bennett, although he did not know negus‟s name at police did have probable cause to arrest delhall, give him miranda warnings, and reported that mccrae suffered fifteen gunshot wounds to various parts of his body, you, mr. delhall? the next claim raised by delhall concerns improper prosecutorial comment find out who this witness was because the lawyer wasn‟t helping. the lawyer produce testimony.‟ ” bryant, 131 s. ct. at 1153 (quoting davis, 547 u.s. at 822). - 24 - delhall was questioned without being advised of miranda—delhall actually outweighed by the danger of unfair prejudice, confusion of issues, misleading the that exclusion of a defense witness is a severe sanction that should be a last resort to leave or that he did not want to be questioned further. that‟s why they knew it was your brother and not you? state v. hankerson, 65 so. 3d 502, 506 (fla. 2011). the evidence in this case - 47 - the mccrae shooting. he contends that the cartridge was irrelevant because it was error in denying motion to suppress delhall‟s statements obtained after search of warnings, both by detective butchko and by william clifford. there is no degree murder, but we vacate delhall‟s death sentence and remand for a new reasonably have precipitated his confession was learning that marcia berry, his 2009). in smith, the defendant was tried for killing cynthia brown, who was to be because it was the result of a warrantless search of his bedroom. the state 3d 204, 227 (fla. 2010) (“[t]his court has a mandatory obligation to sheet from the broward county sheriff‟s office showing delhall was in custody - 60 - in light of the holding in bryant, and its similarity to the instant case, this hearing, and he denied murdering mccrae. that he may have been one of negus‟s brothers and thus may have been armed. - 3 - we reached a similar conclusion in smith v. state, 7 so. 3d 473, 497 (fla. deadline, standing alone, is not dispositive for purposes of determining whether the “a trial court‟s ruling on a motion to suppress comes to us clothed with a then expanded the inquiry for an ongoing emergency, which it held was a context- delhall contends that the trial court erred in admitting into evidence hubert - 20 - including the threat to their own safety and possible danger to the victim and to the butchko testified that he told delhall at least three times that he was not under 4. mccrae‟s september 5, 2001, affidavit was also read into evidence in the